Want a Wiretap Warrant? No Problem, Court Says

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Want a Wiretap Warrant? No Problem, Court Says

Despite refusing to "endorse" the government's tactics in securing a warrant for a wiretap, a federal appeals court is ruling that authorities could use the fruits of their questionable eavesdropping in prosecuting an alleged drug dealer.

The 2nd U.S. Circuit Court of Appeals overturned a lower-court judge who last year suppressed the 50 grams of crack cocaine that was evidence in the case against a man originally suspected of plotting terrorism against the United States. The lower court said a magistrate judge erroneously issued the warrant, breaching the Omnibus Crime Control and Safe Streets Act of 1968, which was designed to strike a balance between law enforcement and "the privacy rights of the individual."

Warrants for wiretaps, according to the act, usually may be granted only after "a full and complete statement as to whether or not other investigative procedures have been tried and failed, or why they reasonably appear to be unlikely to succeed if tried, or to be too dangerous." Under the law, wiretapping generally is not resorted to in situations where traditional investigative techniques would suffice to expose crime.

The lower-court judge threw out the drug evidence against Alexander Concepcion, ruling "the government has shown that it has done little, other than the wiretap, in its investigation of Concepcion's drug-trafficking activities."

The government never used an undercover officer "for the purpose of buying drugs from, or selling drugs to Concepcion," the court noted.

The government's affidavit for the mobile phone wiretap did say, however, that it "attempted to conduct physical surveillance of Concepcion on numerous occasions" to no avail.

The 2nd U.S. Circuit Court of Appeals, while saying the affidavit "was not thorough," nonetheless reinstated the drug evidence Monday [.pdf], calling the issue "an exceptionally close case."

At the same time, the appeals court resorted to double-speak. "We do not endorse the effort put forth by the government in its affidavit," a three-judge panel of the New York-based appeals court wrote.

The three-judge panel continued its Orwellian blather, saying it might not give as much leeway to the government again — all of which would do little for the defendant now facing years behind bars.

"For the government to avoid future suppression orders, it would do well to spell out inmore detail its investigative efforts," the court wrote. "A wiretap is not a device to be turned to as an initial matter, but only where the circumstances demonstrate that it is necessary."